Citation Nr: 0602838
Decision Date: 02/01/06 Archive Date: 02/15/06
DOCKET NO. 04-44 370 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an initial rating higher than 10 percent for
bilateral pes planus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The veteran, his wife, and L. C.; the veteran's two sons
observed
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had honorable active service from February 1980
to December 1985.
This case comes before the Board of Veterans' Appeals (BVA or
Board) from a June 2004 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina, which granted service connection for bilateral pes
planus and assigned an initial 10 percent evaluation
retroactively effective from April 9, 2001. The veteran
appealed for a higher initial rating. See Fenderson v. West,
12 Vet. App. 119 (1999).
To support his claim, the veteran testified at a video-
conference hearing in November 2005 before the undersigned
Veterans Law Judge (VLJ) of the Board. The transcript of
that proceeding is of record.
Other records show the veteran also filed a claim in February
2005 for service connection for plantar fasciitis. This
additional claim, however, has not been adjudicated by the RO
- much less denied and timely appealed to the Board.
38 C.F.R. § 20.200 (2005). The veteran is aware of this, as
he indicated when questioned about it during his video-
conference hearing, so this additional claim is referred to
the RO for appropriate development and consideration. The
Board does not currently have jurisdiction to consider it.
FINDINGS OF FACT
1. The veteran was notified of the evidence needed to
substantiate his claim and apprised of whose responsibility
- his or VA's, it was for obtaining the supporting evidence,
and all relevant evidence necessary for an equitable
disposition of his appeal has been obtained.
2. Because of his bilateral pes planus, the veteran has pain
in his feet, but his current 10 percent rating takes this
into account, and there are no objective clinical indications
that he also has marked deformity, swelling on use, or
callosities.
CONCLUSION OF LAW
The criteria are not met for an initial rating higher than 10
percent for the bilateral pes planus. 38 U.S.C.A. §§ 1155,
5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321,
4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5276
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA), codified at 38
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed
into law on November 9, 2000. Implementing regulations were
created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326.
VCAA notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in his or her possession
that pertains to the claim. See Pelegrini v. Principi, 18
Vet. App. 112, 120-121 (2004) (Pelegrini II). This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1) (2004). Id., at 121.
But according to VA's General Counsel (GC), the Pelegrini II
holding does not require that VCAA notification contain any
specific "magic words." See VAOPGCPREC 7-2004 (July 16,
2004); see also VAOPGCPREC 1-2004 (February 24, 2004).
Pelegrini II also held, in part, that VCAA notice, as
required by 38 U.S.C.A. § 5103, must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ or RO) decision on a claim for VA benefits.
In the case at hand, the veteran was sent a VCAA letter in
August 2002 explaining the type of evidence required to
substantiate his claim for service connection for bilateral
pes planus. The letter also indicated what evidence he was
responsible for obtaining and what VA had done and would do
in helping him obtain supporting evidence. There was no
specific mention, per se, of the "fourth element" discussed
in Pelegrini II, but the letter nonetheless explained that he
should identify and/or submit any supporting evidence. And
in Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), the
Court held that requesting additional evidence supportive of
the claim rather than evidence that pertains to the claim
does not have the natural effect of producing prejudice. The
burden is on the claimant in such a situation to show that
prejudice actually exists. Furthermore, as also held in
Mayfield, an error, whether procedural or substantive, is
only prejudicial "when the error affects a substantial right
so as to injure an interest that the statutory or regulatory
provision involved was designed to protect such that the
error affects 'the essential fairness of the
[adjudication].'" (quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 553 (1984). The content of the VCAA
notice therefore substantially complied with the specificity
requirements of Quartuccio v. Principi, 16 Vet. App. 183
(2002) (identifying evidence to substantiate the claim and
the relative duties of VA and the claimant to obtain
evidence) and of Charles v. Principi, 16 Vet. App. 370 (2002)
(identifying the document that satisfies VCAA notice).
Note also that the veteran was initially provided VCAA notice
in August 2002 - prior to the RO readjudicating and
ultimately granting his claim for service connection for
bilateral pes planus in June 2004. (Note: There had been a
prior adjudication and denial of this claim in August 2001,
before sending him VCAA notice.) In any event, the RO
eventually granted his claim, so any concerns over when he
received the VCAA notice are inconsequential. And although
the RO provided the VCAA notice in the context of when he was
trying to establish his entitlement to service connection for
bilateral pes planus, this benefit, as mentioned, has since
been granted, and the current appeal is a "downstream"
issue - for a higher initial rating. So additional VCAA
notice concerning this "downstream" issue is not required.
See VAOPGCPREC 8-2003 (Dec. 22, 2003) (where VA receives a
notice of disagreement (NOD) that raises a new issue in
response to notice of its decision on a claim for which VA
has already given the section 5103(a) notice, 38 U.S.C.A.
§ 5103(a) does not require VA to provide notice of the
information and evidence necessary to substantiate the newly
raised issue).
Also bear in mind the RO issued a statement of the case (SOC)
in October 2004 pertaining to the specific claim now at issue
(i.e., for a higher initial rating for the now service-
connected bilateral pes planus), and the SOC included
citation to the VCAA's implementing regulations. The veteran
submitted several supporting lay statements in October 2005
- from his wife, two sons, former employer
at Blair Construction, and friend (and former coworker, L.
C.). The veteran's wife and former coworker, L. C., also
provided supporting testimony during the November 2005 video-
conference hearing. Also during the hearing, the veteran
indicated that he would be obtaining and submitting
additional medical evidence from Dr. Daniel Methuselah
concerning treatment he had received for bilateral pes planus
and plantar fasciitis. The veteran also mentioned he was
scheduled to undergo surgery in January 2006 at the local VA
Medical Center (VAMC) in Columbia. So the Board held the
record open (in abeyance) after the hearing to allow him time
to obtain and submit this additional relevant evidence.
But inexplicably he never did. He also has not contacted VA
to indicate this evidence is still forthcoming. So under
these circumstances, the Board finds that he was afforded "a
meaningful opportunity to participate effectively in the
processing of his claim by VA." See Mayfield, 19 Vet. App.
at 128 (holding that section 5103(a) notice [even if]
provided after initial RO decision can "essentially cure the
error in the timing of notice" so as to "afford a claimant
a meaningful opportunity to participate effectively in the
processing of ... claim by VA") (citing Pelegrini II, 18 Vet.
App. at 122-24).
Consequently, "the record has been fully developed," to the
extent possible, and "it is difficult to discern what
additional guidance VA could [provide] to the appellant
regarding what further evidence he should submit to
substantiate his claim." See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004).
Disability ratings are determined by evaluating the extent to
which a veteran's service-connected disability adversely
affects his or her ability to function under the ordinary
conditions of daily life, including employment, by comparing
his or her symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. If two ratings are potentially applicable,
the higher rating will be assigned if the disability more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7. Any reasonable doubt regarding the degree of
disability will be resolved in favor of the veteran. See
38 C.F.R. § 4.3.
A disability rating may require re-evaluation in accordance
with changes in a veteran's condition. Thus, it is essential
that the disability be considered in the context of the
entire recorded history when determining the level of current
impairment. See 38 C.F.R. § 4.1. See also Schrafrath v.
Derwinski, 1 Vet. App. 589 (1991). In addition, as alluded
to earlier, where, as here, an award of service connection
for a disability has been granted and the assignment of an
initial evaluation for that disability is disputed, separate
evaluations may be assigned for separate periods of time
based on the facts found. In other words, evaluations may be
"staged." See Fenderson, 12 Vet. App. at 125-26 (1999).
This, in turn, will compensate the veteran for times since
the effective date of his award when his disability may have
been more severe than at other times during the course of his
appeal.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection of parts of the
musculoskeletal system, to perform the normal working
movements of the body with normal excursion, strength, speed,
coordination, and endurance. The functional loss may be due
to absence of part, or all, of the necessary bones, joints,
and muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it
may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled.
See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2005). See also DeLuca v.
Brown, 8 Vet. App. 202, 206-07 (1995).
A March 2001 VA treatment note indicates the veteran
complained of foot pain, including a burning/stinging
sensation. His gait was normal and pedal pulses were 2+
bilaterally. The assessment was foot pain. An addendum
indicates that an x-ray showed minimal degenerative joint
disease of the feet.
A subsequent March 2001 treatment note indicates the veteran
complained of foot pain due to fallen arches (so flat feet).
The veteran was afforded a VA examination in connection with
his claim for service connection in July 2001. According to
the report, he complained of sore feet, on both sides of the
bottom of his feet. He also said foot inserts and heel cups
do not relieve his pain. Physical examination showed a
normal callus pattern on the plantar aspects of his feet, and
there was no tenderness to palpation or compression of the
feet and heels. His feet were well aligned, and he ambulated
with heel-toe reciprocating gait, without antalgia or
limitations. His skin was normal. There were no motor or
sensory deficits and dorsalis pedis pulses were 2+. The VA
examiner also indicated the veteran complained of a strained
back and reported a history of depression.
An October 2001 VA treatment note shows the veteran
complained of pain and burning on the plantar aspect of his
feet and posterior heel pain.
A January 2002 treatment note from P. Bearden, D.P.M., states
the veteran complained of bilateral foot pain, worse upon
prolonged standing and ambulation. He also complained of
burning, swelling, tenderness, and throbbing of the feet,
with a gradual onset of symptoms. Physical examination
showed palpable dorsalis pedis pulses and posterior tibial
pulses bilaterally. Muscle strength was full and symmetric,
without atrophy or abnormal movement. There was no evidence
of pain upon evaluation. There was abduction of the forefoot
at that Chopart joint upon evaluation of the posterior tibial
tendon bilaterally, with loss of height of the
medial longitudinal arch and valgus deflection of the heel
bilaterally. There was prominence of the medial navicular
and bowstringing of the tibial pedal tendon. Neurological
evaluation was normal. The assessments were bilateral limb
pain, posterior tibial tendon dysfunction and posterior
tibial tenosynovitis bilaterally, and pes planus. Dr.
Bearden also indicated the veteran complained of back and
joint pain.
A February 2002 treatment note from Dr. Methuselah indicates
the veteran had tight plantar fascia and a moderately
pronated stance, with good posterior tibial strength.
An April 2002 VA treatment note shows the veteran's feet were
not painful as his arch supports were helping. His pulses
were intact. The assessment was bilateral plantar fasciitis.
A May 2002 letter from D. Methuselah, D.P.M., states the
veteran complained of severe pain in the arches, inferior and
posterior heels of the feet, and pain that radiated into the
posterior thigh with prolonged weight bearing. A history of
treatment with non-steroidal anti-inflammatory drugs, shoe
inserts, and steroid injections was noted. Physical
examination showed tight bilateral plantar fascia, with
tenderness to palpation; moderate pronate stance, right worse
than left; good posterior tibial strength; and an absence of
pain with inversion against resistance. The assessment was
bilateral plantar fasciitis with pronation.
A July 2002 letter from L. Craig, F.N.P., states the veteran
complained of severe pain of the arches and heels of his
feet. Physical examination showed tenderness upon palpation
at the calcaneus and the balls of the feet bilaterally,
without pain upon inversion against resistance. The
assessment included plantar fasciitis.
Treatment notes from the B-L Family Practice, P.A., indicate
the veteran was treated for foot pain and related a history
of flat feet. In February 2002, there was tenderness to
palpation at the ball of his feet and bilateral calcaneus,
and the assessment was tendonitis. In May 2003, he
complained of numbness and tingling in his extremities with
prolonged standing and sitting. He had good pedal pulses and
there was no evidence of lower extremity deformities. The
assessment was foot pain. Other records show treatment for
anxiety with depression, chronic pain, insomnia, and back
pain, with numbness and tingling down his legs.
April and May 2003 treatment notes from Dr. Methuselah
indicate the veteran complained of bilateral heel pain,
diagnosed as thickened fascia with inflammation.
An April 2004 Physician Questionnaire, completed by Dr.
Methuselah, shows that he reviewed a March 1989 statement
from another provider stating the veteran complained of
progressively worsening flat feet. Dr. Methuselah
characterized the veteran's current level of severity
regarding his feet as moderate.
A May 2004 VA treatment note indicates the veteran complained
of pain in his feet, particularly with walking or prolonged
standing. A history of flat feet was noted. Physical
examination showed fallen arches bilaterally, without
evidence of clubbing, cyanosis, or edema. His skin was
intact and his motor and reflex examinations were normal.
Additional VA treatment records, dated April 2004 through
August 2004, indicate the veteran was treated for abdominal
pain and depression, including a major depressive disorder,
with a history of alcohol dependence and substance abuse.
The veteran was afforded a VA examination in August 2004 in
connection with his current "downstream" claim for a higher
initial rating. The report indicates he complained of
bilateral foot pain on prolonged standing and walking more
than a half mile. He described the pain as being in the
plantar aspect of his feet and in his heels. He reported
that he used prescription shoe inserts and special "SAS"
shoes, but that they do not seem to help. He also reported
that he had some injections into his heels and plantar
aspects of his feet, but he denied receiving any physical
therapy. He related that he was unemployed, but previously
worked on an assembly line and in a grocery store, which were
problematic jobs because he had to stand for prolonged
periods. He also related that his foot pain affected his
activities of daily living by causing depression due to his
inability to work and limiting his recreational activities,
i.e., he cannot jog. The VA examiner noted the veteran
had been treated in the VA Pain Clinic related to his low
back and left lower extremity pain.
Objective physical examination was negative for corns or
calluses, except for a mild corn on the medial aspect of the
right big toe. There was no evidence of edema and the
veteran's toes, toenails, and skin were normal. The
posterior tibial pulses were intact, although his dorsalis
pedis pulses could not be felt. There was no evidence of
restricted or painful movement of the feet, and there was no
tenderness. There also was no evidence of abnormal weight
bearing, weakness, or instability. Upon bilateral heel
raising, there was no inversion at the subtalar joints.
The veteran had shallow arches, which disappeared upon weight
bearing. His Achilles alignment was normal and there was no
pain upon manipulation of his Achilles tendon. His gait was
normal. The diagnosis was bilateral flexible pes planus.
The VA examiner indicated the veteran's range of motion was
not limited by pain, fatigue, weakness, or lack of endurance
following repetitive use.
Written statements submitted in October 2005 by the veteran's
wife, two sons, N.M. (former boss at Blair Construction), and
L.C. (former coworker at Blair) allege the veteran had
problems with his feet such that he was unable to stand
and work due to the extent of his pain.
And, as previously mentioned, the veteran testified at a
video-conference hearing before the undersigned VLJ of the
Board in November 2005. In testimony, the veteran said he
received treatment for his feet approximately every 6 months
and that he had been scheduled for surgery in January 2006
related to his plantar fasciitis. He also testified that he
had constant foot pain, which interfered with his ability to
stand and walk, such that he had to quit his job. He
indicated that the pain goes up his legs and into his back.
He stated that he had not worked in 4 or 5 years. His wife
testified that he had been unable to keep a job since his
military service, and that his feet had bothered him since
leaving the military. His former co-worker, L.C., provided
additional supporting testimony - saying the veteran could
not perform his work at a construction company (Blair) for
very long because he could not stand on his feet all day, as
required.
The veteran's bilateral pes planus is currently rated as 10-
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code
5276. A 10 percent rating under this code, regardless of
whether the condition is unilateral or bilateral, indicates
it is moderate with the weight-bearing line over or medial to
the great toe, inward bowing of the tendon Achilles, and pain
on manipulation and use of the feet. A 20 percent rating for
unilateral flat foot or a 30 percent rating for bilateral
flat foot requires a severe condition with objective evidence
of marked deformity (pronation, abduction, etc.), pain on
manipulation and use accentuated, indications of swelling on
use, and characteristic callosities. A 30 percent rating for
unilateral pes planus or a 50 percent rating for bilateral
pes planus requires a pronounced condition manifested by
marked pronation, extreme tenderness of the plantar surfaces
of the feet, marked inward displacement and severe spasm of
the tendo Achilles on manipulation, not improved by
orthopedic shoes or appliances. Id.
In considering these rating criteria in relation to the
medical evidence of record, the Board finds that the
veteran's disability picture is most consistent with the
currently assigned 10 percent rating. So a higher rating is
not warranted. The objective clinical evidence of record
does not show that he has marked deformity, skin or vascular
changes, swelling, or callosities. And while there are
credible indications he experiences intermittent pain -
especially from prolonged walking (ambulation) and standing,
his gait is still normal. Likewise, there is no evidence of
associated limitation of motion or functional impairment in
his feet due to his pain and he experiences some relief with
orthotic shoe inserts, despite that he has at times denied
this. Furthermore, his muscle strength and pedal pulses are
normal and his Achilles tendon is aligned. Additionally, the
medical evidence of record distinguishes between his symptoms
from his nonservice-connected plantar fasciitis and service-
connected pes planus. Only the functional impairment
specifically attributable to his pes planus can be cited as
grounds for increasing his rating because the plantar
fasciitis has not yet been shown to be caused by or related
to his military service. See Mittleider v. West, 11
Vet. App. 181, 182 (1998). The plantar fasciitis may, at
some point in the not too distant future, be service
connected (bearing in mind the veteran filed a claim for this
additional condition in February 2005). But that has not yet
occurred. Therefore, his symptomatology specifically
attributable to his bilateral pes planus most closely fits
within the criteria for the currently assigned 10 percent
evaluation.
In determining the veteran is not entitled to an initial
rating higher than 10 percent for his bilateral pes planus,
the Board also has considered whether he is entitled to
a higher initial rating on the basis of functional loss due
to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).
See, too, 38 C.F.R. §§ 4.40, 4.45, and 4.59. The fact that
he experiences pain, particularly with prolonged use of
his feet, means his pes planus is at least symptomatic in
this specific respect. Nevertheless, as previously
mentioned, his current 10 percent rating for moderate pes
planus contemplates "pain on use." So this symptom, even
assuming he has it, is already factored into his current 10
percent rating. Thus, there is no objective clinical
indication that he has other symptoms, aside from this, which
result in any additional functional limitation (motion, etc.)
to a degree that would support a rating higher than 10
percent. Indeed, the VA compensation examiner who most
recently evaluated the severity of the pes planus in August
2004 specifically indicated the veteran's range of motion was
not limited by pain, premature/excess fatigue, weakness, or
lack of endurance - even following repetitive use.
Finally, the Board has considered whether the veteran is
entitled to a higher initial rating on an extra-schedular
basis. But the Board concludes the record does not present
such "an exceptional and unusual disability picture as to
render impractical the application of the regular rating
schedule standards." 38 C.F.R. § 3.321(b)(1). There has
been no showing by the veteran that his bilateral pes planus
causes, standing alone, marked interference with his
employment (meaning over and beyond that contemplated by his
current schedular rating) or necessitates frequent periods of
hospitalization so as to render impractical the application
of the regular rating schedule standards. Rather, by his own
admission, his plantar fasciitis is the much more troubling
condition; he has not required any hospitalization or
prolonged treatment for his bilateral pes planus -
especially in comparison. And although he testified that he
was unable to work due to his bilateral pes planus, as did
his friend and former coworker L. C., the objective medical
evidence of record indicates the veteran's nonservice-
connected back problems, plantar fasciitis, and even major
depressive disorder are far more significant factors in his
current unemployability. So there is no basis for referring
this case to the Director of VA's Compensation and Pension
Service for extra-schedular consideration. See, e.g.,
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
In conclusion, for the reasons stated, the Board finds that
the preponderance of the evidence is against the claim for a
higher initial rating of the bilateral pes planus. So there
is no reasonable doubt to resolve in the veteran's favor.
38 C.F.R. § 4.3. See, too, Alemany v. Brown, 9 Vet. App.
518, 519 (1996).
ORDER
The claim for an initial rating higher than 10 percent for
bilateral pes planus is denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs